Trust me. I fully understand how appeals work and the litigation process. This was an error that was committed by Judge Du. It is clear as day. And if you are appealing a case, it is better to have errors than no errors. This is why there are appellate courts.
The other thing Amarin has going for it is the venue will be different and there will be three judges.
The Patent Examiner considered Kurabayashi and found that Amarin presented sufficient evidence showing unexpected benefit yet Judge Du still felt she knew more than the Patent Examiner notwithstanding the burden being clear and convincing. You can't make this stuff up.
This is not only an important case for Amarin but also for the pharma industry. Don't be shocked if others come to Amarin's defense when this appeal is heard.
You example requires the judge to have apply unequal weighting to #1 - #5 if negating #3 doesn't change the outcome - we know that's the incorrect way to view secondary considerations, another error Du made - would that also apply to findings of fact?
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